Depositions can make or break a case, and can make or break some attorneys' careers or reputations too.
Take for example the Illinois attorney who recently was recommended to face a disciplinary action by the state's disciplinary hearing board due to his incredibly obnoxious behavior during a deposition. He not only personally insulted opposing counsel, but had the gall to blame his untoward conduct on election of President Trump and the erosion of American standards, all while on the record. Sadly, his insults weren't even funny.
Keep Calm and Depose On
For a deposing attorney, when your opposing counsel is hurling a barrage of insults, continuing on can be rather difficult. However, if it is your deposition, you need to retain control. Below you'll find a few tips on how to do so:
1. Control the court reporter: If your opposing counsel continues to interrupt, or tries to "go off the record," while you are on the record, instruct the court reporter to not go off the record unless instructed by you, or you approve the request by opposing counsel, as it is your deposition and not the opposing counsel's. Make sure the court reporter captures the insults.
2. Control the record: When opposing counsel hurls an insult, make a statement on the record to the effect of "May the record reflect that attorney [insert their full name, including middle name if you know it] has interrupted the deposition to cast personal aspersions toward counsel." If there is an official note or statutory comment or a regulation or ethics section or comment from your jurisdiction regarding attorney conduct in depositions, you may even consider copying it for everyone in the room, then reading it to opposing counsel on the record.
3. Control via coaching: If your unruly opposing counsel seems to be influencing the deponent, don't shy away from counseling the attorney regarding "speaking objections" and to demand they "refrain from coaching the witness." Similarly to number 2 above, if there's some official comment on these from your jurisdiction, reading it on the record could be a quick way to correct your opposing counsel's conduct.
4. Control the marks in the record: After each of opposing counsel's outbursts, request that the court reporter "mark the record," then instruct the witness to answer as if their counsel wasn't even present in the room.
5. Control time: If the insults just don't stop despite repeatedly counseling your opposing counsel to refrain and stop wasting your deposition time, use the remedies available to you via your judge.
That might include stopping the deposition for a phone call to the judge, and asking the court reporter to read back the insults and obstructive conduct so the judge can hear what's going on. Or it may require a full motion and hearing where you make it clear that opposing counsel's conduct compels further time for deposition without objections and for sanctions against counsel for necessitating such and wasting everyone's time. Note: Before calling off the deposition, spend some time researching similar matters in your jurisdiction and confirming that you got the rules right.
Related Resources:
- What to Do When a Witness Is Blowing a Deposition (FindLaw's Strategist)
- Hardcore Deposition: Lawyer Uses a Gun (FindLaw's Greedy Associates)
- Why High-Profile Depositions Matter (FindLaw's Strategist)
